About Me

I am a Professor of Law and the Director of the Program on Information
Justice and Intellectual Property at the American University, Washington
College of Law and am a founding member of the Creative Commons board.

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Tuesday, December 30, 2008

The Digital Public Domain

Whatever one thinks about the rest of the Google Book business, I think it's important to focus on the digitization of public domain books by both Google and the Open Content Alliance and to use these efforts as the basis for conceiving of the Digital Public Domain as a more robust version of the traditional public domain.

Here's the gist of the argument:

1. Copyright and the Encouragement of Learning.

Copyright law is at the heart of concerns about using the Internet to provide universal access to learned and cultural works. These concerns arise in particular with respect to two related issues: access to books and other printed materials that can be digitized and shared over the Internet, and access to scholarly works yet to be produced, which could be shared over the Internet but routinely are not.

The purpose of copyright law has been to promote learning and the progress of knowledge. Two features of copyright law should provide the guide for how to respond to access concerns. First, copyright is an author's right. This is definitional. Prior to 1710, the law provided exclusive printing rights to printers, leaving authors with no rights other than ownership rights in a physical manuscript. The first copyright act, the Statute of Anne, fundamentally changed this relationship by giving rights to authors, who could then make choices about with whom or how to publish. Since that time, copyright law has consistently remained an author's right.

Second, copyright law explicitly balances the need to reward authors for their contributions to society with the public's interests in having access to works created by others and the rights to reuse such works. For this reason, copyright is a time-limited right. Copyright expires so that the public may ultimately gain unlimited access and use rights. This also is definitional. The Statute of Anne created the public domain, and the English courts held in favor of the public domain in the Battle of the Booksellers, in which English publishers argued that perpetual common law printing rights survived the creation of copyright law.

Therefore, by design, all copyrighted works are destined for the public domain. But, the public domain as a legal concept means only that a work is free from copyright restrictions. There is no positive commitment by the law to make such works available to the public other than the deposit requirement under U.S. law. Nonetheless, removing copyright restrictions gives those who would publish or publicize works an incentive to do so for works still deemed relevant or interesting to the public. See, e.g., Paul Heald's article.

2. The Digital Public Domain

In the age of the Internet, we need to reconceive the public domain as the Digital Public Domain. In the Digital Public Domain, it is not enough that a work is free from copyright restrictions. A positive commitment to universal access to the public domain requires first that public domain works be digitized or at least be subject to a protocol that enables digitization when cost effective.

Second, works free from copyright restrictions should be made accessible over the Internet. Mass digitization of the public domain promotes the goals of universal access, improved learning, and the progress of science.

Third, works free from copyright restrictions should not be subject to technological measures or contractual restrictions or "terms of use" that in any way inhibit members of the public from exercising their usage rights in public domain works.

Fourth, access and the absence of legal restrictions alone are insufficient. Those who search the Internet for information often do so for active purposes. It is not sufficient to find information that is topically relevant. The information also must be useful for the researcher's purposes. Marking and tagging works with their use rights enables computers to search for information that is both topically relevant and useful. I've argued more extensively about use relevance here.

From this principle follows the corollary that the digital public domain should be tagged and marked as such. An important purpose for making copyright a time-limited right is to make the work more useful to the public, who may now republish or repurpose the work without fear of legal liability. To further this purpose in the digital age, computers must be able to parse the public domain status of a work to communicate its usefulness to researchers.

Consequently, those public and private bodies that laudably have been investing in efforts to digitize public domain works should increase the returns on their investment by marking and tagging public domain works as such. Creative Commons provides a metadata standard for digitally marking works with their use rights, the Creative Commons Rights Expression Language (ccREL). Specifically, Creative Commons provides a means of marking a public domain work as such. http://creativecommons.org/licenses/publicdomain/. Creative Commons requires support to implement plans to update this protocol to provide more robust information about public domain works.

3. The Open Access Connection

Looking forward, how should the features of author's rights and balance between author and public influence the availability of contemporary and future learned works, particularly scholarly research reported in peer-reviewed journals? Here, the open access movement has an answer.

Faculty authors and other professional researchers have a responsibility to manage their copyrights in a way that ensures public access to the scholarly record well before copyright expires in these works. Why? Because the standard justification for granting author's rights does not neatly apply to these scholarly authors. They are motivated by the desire to be read and are not remunerated by journal publishers for publishing their work.

When authors have no need to limit access to their work for purposes of remuneration, they should make their work freely available to promote the progress of science. When researchers have been funded by the government or by private charities, it is inexcusable not to ensure reasonable and timely free public access to the fruits of this research consistent with copyright.

Progress has been made recently in improving free public access to recent scholarship. As directed by the United States Congress, the National Institutes of Health now requires researchers who accept NIH funds to ensure that NIH receives a copyright license to make peer-reviewed articles publicly available on the Internet no later than 12 months after the date of publication. Many public and private science funders in Europe, Canada, and Australia have similar policies, with 6 month deadlines.

Faculty authors are coming to the realization that the way they manage their publishing rights should reflect their core values and the university's core commitment to disseminating knowledge. A number of faculties have adopted resolutions recommending open access, but these have led to very few results. Just as was the case when the NIH policy was voluntary, authors at these institutions generally continue to sign away their rights to make their work available on the Internet or fail to use such rights when they have them by depositing manuscripts in an open access repository.

Change is on the way. Taking the lead in the United States, the Harvard Faculty of Arts and Sciences has adopted a policy through which faculty authors commit to deposit their peer-reviewed articles in the university's new digital repository and to grant the university an advance copyright license to any scholarly journal articles written by faculty members, subject to the author's right to waive the license on a per-article basis. Under the policy, faculty authors must manage their copyrights to ensure that their publication agreements are consistent with the university's public access license. Some faculties or departments at universities around the world have adopted similar open access mandates.

4. The Role of Universities

It is time for faculty and university administrators to get serious about the Internet as a knowledge medium. They need to organize a campus-wide process for developing a policy on knowledge dissemination in the digital environment. At most institutions it would be unwise or impractical for university administrators to impose an open access policy on faculty authors, unless the university were to take the position that peer reviewed journal articles are works made for hire and are therefore owned by the university. But, administrators should show leadership by organizing an ad hoc task force on scholarly communication comprised of leading scholars from major departments.

This should not be done by the library committee because the issue goes to the heart of the university's mission and is not merely a departmental budgetary concern. And, it should be made clear that experience teaches that if the task force recommends only adoption of a hortatory resolution requesting that faculty authors provide for open access, that is tantamount to a decision to do nothing to improve access to the scholarly record. Mandates work. Requests do not.

Those studying open access should take note that some authors have gone further to use public licensing as a means of giving the public broad use rights along with free access. Scholars who publish with publishers such as the Public Library of Science, BioMed Central or Rockefeller University Press grant the public a Creative Commons license that provides generous rights to translate, adapt and republish (with proper credit) their articles.

In sum, the initiatives to digitize public domain works and to provide open access to contemporary learning share the common goal of making the Internet a repository for human knowledge and a more powerful resource for researchers, students, teachers, and learners of all kinds around the world. Three principles derived from the purposes of copyright law, should guide these efforts: (1) the works should be freely available; (2) public domain works should be free from any contractual restrictions on use; and (3) the works should be marked with their use rights.

This post is derived from my presentation at the Boston Library Consortium's Universal Access Digital Library Summit in September with the aim of showing connections between book digitization projects and the open access movement.

1 Comments:

Anonymous said...

I admire the sentiments that want to create an open digital public domain, but let's not forget money. Libraries and businesses that digitize public domain books make a substantial investment - something on the order of $50-$100 per title. It is natural that they would want to recoup some of that investment by restricting some uses for a period of time. So your third point on the digital public domain, that "works free from copyright restrictions should not be subject to technological measures or contractual restrictions or 'terms of use' that in any way inhibit members of the public from exercising their usage rights in public domain works," might be a desirable long-term goal, but in the short term is probably not realistic if books are to be digitized in a timely fashion.

This is why Peter Kaufmann's work on desirable licensing terms is so important. The Google contracts, which never allow a work to fully enter the public domain, are not so good. Much better are NARA's contracts that give commercial publishers a limited (7 year) exclusive right to the digital files, after which time they can be freely used. Worst of all are the agreements that libraries sign with commercial publishers (Readex, Proquest, Alexander Street Press, etc.) that never allow the works to become freely available - and unlike the agreement with Google, specify that public access will only be through expensive subscription databases.

The same goes for open access of scholarly works. If there is full open access, can scholarly publishers survive financially? And if they can't, won't access to scholarship be hurt?

A digital public domain is a great idea. But who is going to put up the hundreds of millions that will make it happen?